Holmes: Making presidents execute the laws

For four years, Ed Markey has told all who would listen about the bombs in the cargo compartment.

Rick Holmes

For four years, Ed Markey has told all who would listen about the bombs in the cargo compartment.

While you stand in line, your luggage, your carry-on bags and finally your shoes are carefully examined by federal employees, he'd say. Then, as you're finally taking your seat on the plane, you can look down and see big boxes of packages being loaded into the cargo compartment - none of which had been inspected by anybody.

For awhile, Markey, the senior member of the Bay State congressional delegation, carried around with him a standard envelope, about the size of one you'd use to send a video cassette across country. You could fit enough explosive in this envelope to take down a 747, he'd say, and nobody would ever look at it before it was loaded into the belly of the plane.

While the Republicans controlled Congress, all Markey's efforts to pass a law requiring cargo shipped on commercial aircraft be inspected came up short, mostly because of resistance from shipping giants like FedEx and UPS. Then the Democrats took charge, and from his seat on the Homeland Security Committee, Markey was able to write his cause into a law making the recommendations of the 9/11 Commission official policy. Markey's provision requires 100 percent of all air cargo carried on passenger planes to be screened within three years.

Seems perfectly clear.

President George W. Bush signed the 9/11 bill into law on Aug. 3. Then, as is his habit, Bush issued a "signing statement" that was anything but: "I will also continue to work with Congress to ensure the workability of the cargo screening provisions in a way that increases our vigilance on homeland security while ensuring the continuance of vital commerce."

In other words, the executive branch will follow the law if it can figure out a way to do it without inconveniencing FedEx and UPS.

This is something Bush has been doing for years. Congress sends him a bill appropriating funds for the war in Iraq but requiring timely progress reports, he signs the bill, then later adds a signing statement saying he might not provide the progress reports.

After long, hard debate, Congress sends the president a bill prohibiting the use of torture against detainees in U.S. custody, he signs it, then later adds a signing statement reserving his right to order whatever interrogation techniques he deems fit.

Charlie Savage, the Boston Globe reporter who won a Pulitzer Prize for blowing the whistle on this practice, estimates Bush has used signing statements to excuse himself from enforcing more than 1,100 provisions of laws he has signed. All presidents before Bush issued signing statements challenging 600 sections of laws.

There are a few parts of the Constitution experts argue about 200 years later, but Article II, Section 3 seems perfectly clear: The president "shall take Care that the Laws be faithfully executed."

The signing statements are part of a pattern. At every turn, Bush and Cheney have looked for opportunities to strengthen executive powers, usually by reducing the powers previously vested in Congress and the judiciary.

Markey, who is chairman of the House Committee on Telecommunications, has been trying for years to figure out how the National Security Administration's system of domestic wiretapping works. He knows AT&T and other telecom companies have given the NSA and/or other intelligence agencies back-door access to the servers that handle telephone and e-mail traffic. But whose e-mails are they reading, how are conversations monitored, and who is in charge? Every time Markey tries to ask, even in Congress' top-secret cone-of-silence room, the administration invokes the "state secrets" law and won't say a thing.

If things don't go from bad to disastrous in Iraq, Iran, Afghanistan and Pakistan - a big if - Bush's most enduring legacy may be the distortion of the Constitution's balance of powers and the return of the imperial presidency. That's not by accident. Strengthening executive power has been a goal of Dick Cheney's since he served in the Ford White House and saw the power Nixon had accumulated slip away.

What can be done about it?

One constitutional remedy is impeachment, and most serious observers would agree that Bush has provided plenty of grounds. Just holding hearings into his violations would be an instructional exercise in righting the constitutional imbalance.

But there are lots of arguments against impeachment. First, nothing would get done in Washington while impeachment held center stage. Markey is looking forward to pushing an important global warming bill through the House this week. It would never become law if impeachment were being debated, he says.

Since Newt Gingrich's House impeached Bill Clinton, impeachment has come to be seen as a way to settle political scores, not a serious constitutional exercise. Gingrich paid for it at the polls, a lesson that hasn't been lost on Washington Democrats.

Then there is the result of a successful impeachment of Bush: President Cheney. And at this point, the clock would likely run out on Bush's presidency before impeachment proceedings could be completed.

What's the alternative to impeachment? Markey says next year's election will repudiate everything Bush stood for, including his usurpation of powers the Constitution doesn't give the president. Maybe, but only if executive powers become a campaign issue.

There's hope on this score: John McCain, Bill Richardson and Ron Paul have all pledged that, if elected, they will never use signing statements to sidestep the constitutional process. But these aren't exactly front-burner issues in Iowa and New Hampshire.

Besides, can we count on people like Hillary Clinton or Rudy Giuliani to voluntarily give up some of the president's powers just as they enter the White House? I wouldn't bet on it.

If Congress wants to wrest some of its authority back from the president, it should do it by legislation. After all, Richard Nixon's impeachment by itself did little to shrink the imperial presidency.

But while Nixon was weakest, a Democratic Congress passed legislation - the War Powers Resolution that restricted the president's authority to wage undeclared wars, the Foreign Intelligence Surveillance Act (FISA) which reined in wiretapping until Bush started ignoring it, the Presidential Records Act and Freedom of Information Act, both of which have been undermined by Bush/Cheney - were important correctives to abuses of power in the White House.

Democrats in Congress shouldn't wait for a Democratic president to give power back to Congress. They should be passing laws that restore its authority. Among them should be a law that reinforces the Constitution's mandate that the president "faithfully execute" the law.

Rick Holmes is opinion editor of the MetroWest Daily News. He can be reached at rholmes@cnc.com.